Articles

Published on April 30th, 2017 | by Eva Cripps

MOTORCYCLISTS BOASTING ON FACEBOOK – The Law of Unintended Consequences

The world has changed significantly since the advent of social media. Mad reports of rider heroics and daring adventures are no long simply shared among friends, verbally recounted in lavishly exaggerated details for years to come.

Instead, many motorcyclists turn to social media to make contemporaneous written records of mayhem and daredevilry.

And who doesn’t love a crazy ride report? The closeness of the call, the fastness of the speed and the trickiness of the manoeuvre all add drama, animating a mere ride through the hills into an epic marathon of awesomeness. That overtake on the blind corner was made so much more exhilarating by the approach of a road-train, the charge through the deserted streets at midnight-o’clock was made so much more thrilling by the absence of headlights and the approaching siren.

But the world has changed, and is changing still. The War on Death and Road Trauma and Carnage has changed the landscape in which adventurers and non-conformers must operate. The recital of near-misses and exploits, penned as a running commentary, or the elaborate allegedly-fictional narrative, carefully composed later over a bottle or five, may have unintended consequences.

Gone are the days where an excited rider can revel in the extravagance of on-road antics, while confident that their general reputation and character will remain unscathed in the eyes of the general population.

A recent judgment in the Supreme Court of Queensland highlights how Facebook entries can be dragged out and used in conjunction with other officially recorded information to paint a person in an unfavourable light.

In the case of Brown v Holzberger & AAI Limited [2017] QSC 54, a motorcyclist ploughed into the rear of a turning vehicle and consequently had his leg amputated below the knee. He alleged the driver of the car negligently caused his injuries.

The evidence generally revolved around whether or not the defendant driver, Mr. Holzberger, saw the motorcyclist and turned blithely into his oncoming path, or whether the motorcyclist, Mr. Brown, was speeding and thus unseen to the driver before he commenced his turn.

The witnesses included Mr. Holzberger, a retired police officer, and his daughter, who all testified the motorcycle was not in view when Mr. Holzberger turned right across the lane; an experienced motorcyclist who did not see the crash, but stated that she had witnessed Mr. Brown in the minutes before the crash accelerating quickly, and zig-zagging within his lane for some distance, like in the “MotoGP and they’re warming up their tyres when they first take off,”; and a husband and wife travelling in a four-wheel-drive who Mr. Brown had undertaken just before the crash. The wife, an elderly woman who had never held a driver’s licence, testified the rider went “Whizzing past me so fast, I yelled out, ‘Fuck, what was that?’ because I got such a hell of a fright”, before “dropping back a cog” and slamming into Mr. Holzberger’s vehicle.

In addition to the witnesses, the second defendant, Suncorp Insurance (AAI Limited), advanced evidence of entries on Mr. Brown’s Facebook page, which “consisted of boasts to friends about driving inappropriately on the road and a short statement post-accident that he had ‘hit a car’.” It also provided Mr. Brown’s history of speeding offences (four counts) and consequent licence suspensions due to accumulated demerit points (three counts), as well as an inconsistent statement.

While Justice McMeekin noted “[t]he [Facebook] entries do not assist in the fact-finding necessary here”, he went on to comment that “the boasts display an immaturity in keeping with his traffic history”. The records of behaviour, in conjunction with witness evidence, indicated to Justice McMeekin the rider had form for particular types of behaviour on the roads, and that at the time of the crash, Mr. Brown had not changed his behaviour.

Ultimately, the Supreme Court found Mr. Brown was fully at fault in the crash and Mr. Holzberger had not breached his duty of care to Mr. Brown by turning in front of him, as Mr. Brown had apparently overtaken another vehicle on the left-hand side, at great speed, only a short distance from the intersection which Mr. Holzberger was turning into, and that “there was no action reasonably open to Mr. Holzberger to then avoid the accident.”

Despite Mr. Brown’s Facebook posts being unrelated to, and/or irrelevant to the findings of fact of the crash, his case must serve as a reminder to all motorcyclists that ride accounts documented on social media may help to paint a potentially unhelpful picture in the event of a future crash. This is particularly important where the rider is seriously injured and seeking damages, and where a finding of negligence on the other party may increase the compensation awarded.

In the case of Mr. Brown, the witnesses’ perceptions of his speed and manoeuvres were boosted in court by his socially admitted propensity to misbehave. While Mr. Brown “denied that he had actually behaved as he there represented”, Justice McMeekin had “no way of knowing whether he had in fact done so.” The impression left was that Mr.Brown’s typical behaviour was that of irresponsibility and disregard for the road rules. In general, his evidence was not believed.

A risk-averse and conservative community increasingly frowns on the antics and tales of motorcyclist bravado and adventure. Societal acceptance of hoonish behaviour grows dimmer by the day. Perceptions of motorcyclists as law-breakers, irresponsible fiends, and “temporary” citizens already disadvantage riders involved in a crash.

Compulsory Third Party (CTP) insurers, mercilessly troll social media searching for posts to use against an injured rider, to either demonstrate negligence, attack a rider’s claims of consequent incapacity, and to reduce any damages.

If a rider’s character or credibility is called into question, it pays, quite literally, to protect yourself.

Motorcyclists who use social media must be aware, be wary, and be smart. Keep security settings up to date and limit exposure to unscrupulous harvesters of data and information. No-one deserves to have their historical, frivolous account of adventure and daring-do costing them a leg.

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About the Author

is a pint sized tornado who is surely formed from the blood of Vikings and molten stone. She is an Educated, Qualified and Professional person. She has a strong interest in justice being served, and is not afraid to speak her mind when she senses disturbances in the force. Cross her at your peril.



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